Cook Dupage Transportation Co.

National Labor Relations Board - Administrative Judge Opinions

Nov 5, 2009

13-CA-045193 (N.L.R.B. Nov. 5, 2009)

JD-51-09
Chicago, IL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
COOK DUPAGE TRANSPORTATION COMPANY
and Case 13−CA−45193
AMALGAMATED TRANSIT UNION, LOCAL 1028, AFL−CIO
Hye Young Bang-Thompson, Esq.
for the General Counsel.
Donald J. Vogel, Esq.,
(Scopelitis, Garvin, Light, Hanson & Feary),
of Chicago, IL, for the Respondent.
Robert Cervone, Esq.,
(Dowd, Bloch and Bennett),
of Chicago, IL, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MARK CARISSIMI, Administrative Law Judge. This case was tried in Chicago, Illinois, on
September 10, 2009. The charge was filed March 27, 2009, and the complaint was issued May
12, 2009.
The complaint alleges that the Respondent violated Section 8(a) (5) and (1) of the Act on
or about March 9, 2009 by insisting as a condition of reaching a collective-bargaining agreement
that the Union agree to withdraw unfair labor practice charges that were currently pending
before the Board in Cases 13−CA−44649 and 13−CA−44861,1 a nonmandatory subject of
bargaining. The complaint also alleges that the Respondent rescinded its March 9, 2009
bargaining proposal because the Union would not withdraw the above noted unfair labor
practice charges.
After the trial, the General Counsel and the Respondent filed briefs, which I have read
and considered. Based on the entire record in this case, including the testimony of the
witnesses, and my observation of their demeanor, I make the following;

1 On February 12, 2009, Administrative Law Judge Robert Giannasi issued a decision in the
above captioned cases finding that the Respondent violated Section 8(a)(5) and (1) of the Act
by unilaterally laying off 40 employees in April 2008 and eliminating its standby driver program.
He further found that the Respondent violated Section 8(a) 5 and (1) of the Act by refusing to
provide relevant information since on or about April 11, 2008. On June 4, 2009 the Board
affirmed Judge Giannasi’s decision at 354 NLRB No. 31. I take judicial notice of the Board’s
decision.
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FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation with an office and place of business located in Chicago,
Illinois, provides transit and para−transit services. During a representative 1 year period,
Respondent derived gross revenues in excess of $250,000, and purchased and received, at its
Chicago facility products, goods and materials valued in excess of $5000 directly from points
outside the State of Illinois. Accordingly, I find, as admitted, that the Respondent is an employer
engaged in commerce within the meaning of Section 2 (2), (6), and (7) of the Act.
The Union is a labor organization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The bargaining between the parties in this case was the subject of a recent Board
proceeding in which the Board found that the Respondent violated the Act. 2
The Respondent transports disabled individuals within the Chicago metropolitan area,
principally the City of Chicago, pursuant to contracts with the Regional Transportation Authority
(RTA) a governmental agency or its constituent service boards, including the Chicago Transit
Authority (CTA) and PACE. The Respondent employs between 400 and 500 drivers to perform
this work.
The Respondent, which began operations in 1975, had historically operated within the
city of Chicago under contracts with the CTA. However, PACE which had operated the
suburban para−transit operation, took over all such operations throughout the Chicago
metropolitan area and the Respondent entered into a contract with PACE on December 14,
2007, which became effective on March 29, 2008. Prior to entering into a contract with PACE,
the Respondent utilized drivers to run assigned shifts in the peak volume periods of morning
and afternoon rush hours. The Respondent also had an existing practice of using drivers for a
standby shift. These drivers filled in for drivers who were unable to drive their regular shifts. The
standby drivers who were not utilized on a regular shift were paid for 1 hour of work and sent
home.
After a Board-conducted election, the Union was certified as the collective−bargaining
representative for the Respondent’s drivers on July 27, 2006. Since then the parties have had
approximately 30 bargaining sessions but have not reached an agreement as of the date of the
trial in the instant case. Throughout the negotiations the Union’s attorney, Robert Cervone,
acted as its chief negotiator and Tim Jans, a vice president and co−owner of the Respondent
along with his two brothers, acted as the Respondent’s chief negotiator.
By February 9, 2007, the parties had reached a number of tentative agreements
encompassing provisions governing layoff and bidding and work schedules, including the use of
standby drivers. On October 30, 2007, the Union engaged in a brief strike, after which all

2 In this section I rely on the facts found by the Board in its decision in Cook Dupage
Transportation Co., 354 NLRB No. 131 (June 4, 2009) and evidence contained in the present
record.
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tentative agreements were rescinded. Later the tentative agreements of February 7, 2007, were
reinstated including the provision regarding standby drivers.
When the parties met on March 21, 2008, they went over the operational changes
required by the Respondent’s recent contract with PACE. This agreement provided that
contractors, such as the Respondent, were paid by the hour rather than by trip and that the
contractors would dispatch drivers under a new computerized system called Trapeze. Under
that system, a customer would place a call to a PACE telephone number the day before the trip,
giving the starting and ending times and location of the trip. That information is then provided to
the Respondent via computer in a manner that generates a schedule for each vehicle used by
the Respondent.
At a meeting held on April 11, 2008, after the PACE contract had gone into effect, the
parties discussed the Trapeze system. At this meeting Jans indicated that he was going to
have to lay off or terminate drivers. Cervone objected to any layoffs or terminations and
requested bargaining over the decision and the effects of the Respondent’s decision. Cervone
requested the names of the drivers that the Respondent was going to lay off, a seniority roster,
and the attendance records for all employees. Later that same day Cervone sent an e-mail to
Jans confirming the Union's position on bargaining and the information requests.
In fax messages between April 14 and April 21, 2008, the Respondent notified the Union
that it had terminated 40 employees in accordance with its notification at the April meeting. In
late April and early May, Cervone again requested the information referred to above. The
parties had meetings on June 11 and July 22, 2008, but no progress was made. On July 3,
2008, the Respondent sent letters to the laid-off drivers offering immediate reinstatement to their
former positions. Approximately 10 to 15 employees accepted those offers.
As noted above, the Board found that the Respondent’s refusal to bargain regarding the
decision to lay off employees and to eliminate the standby driver program and the effects of
those decisions violated Section 8 (a) (5) and (1) of the Act. The Board further found that the
refusal to provide the requested information also violated Section 8(a) (5) and (1) of the Act.
B. The Bargaining Since February 23, 2009.3
After a hiatus of some period of time due to the litigation of Cases 13−CA−44649 and
13−CA−44861 the parties resumed bargaining on February 23, 2009,4 at Cervone's office (Tr.
19). Cervone continued as the principal spokesman as did Jans for the Respondent. Union
President Junious Matthews was also present.
Cervone testified that prior to this meeting the parties had reached tentative agreement
on most of the issues. The issues that the parties had not agreed on were union security,
dues−checkoff, wages, sick /personal days, and the duration of the contract. Cervone testified
that prior to the meeting the Union had made an internal decision to do everything it could to

3 The facts set forth are based primarily on the testimony of Cervone and GC Exhs. 2−8.
There is little dispute between the testimony of Jans and Cervone regarding the meetings held
on February 23, 2009 and afterwards but Cervone’s testimony is more detailed and therefore I
credit it to the extent there is a conflict. His testimony is also generally consistent with notes that
Jans prepared after the meetings (R. Exh. 2). Many of the salient facts are set forth in the
above-noted exhibits and are not controverted.
4 Dates are in 2009 unless otherwise indicated.
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obtain an agreement (Tr. 75).
The meeting on February 23 began with a discussion of some operational issues.
Cervone asked Jans how the Trapeze dispatch system was operating and Jans replied that it
was beginning to operate more effectively. They also discussed whether employees were
getting their proper lunch breaks. Jans explained the manner in which the Respondent’s
computer system inputted lunch breaks into the driver's electronic manifest. Cervone asked
whether routes were being bid on by seniority and Jans responded that they were. (Tr. 19-24.)
Cervone then asked Jans if the prior tentative agreements that the parties had reached were
still in effect subject to reaching a complete agreement. Jans replied that they were.
Cervone presented Jans with a written proposal at this meeting (GC Exh. 3). The
proposal set forth several of the issues on which the parties had reached tentative agreement.
The new and critical parts of this proposal were that the Union proposed a $1.50−per−hour
wage increase and offered to withdraw its union security proposal if the Respondent would
agree to the dues checkoff provision. The Union also changed its position on personal/sick days
and lowered its request to six such days. Finally, the Union proposed a one year agreement. 5
After reviewing the Union’s proposal, Jans Indicated that he would consider it further and make
a counteroffer within a week or two.
The meeting concluded with a discussion regarding the cessation of business by another
para-transit contractor. Cervone asked if the Respondent’s volume of business had increased
by virtue of that closure. Jans replied that the closed employer’s routes had gone to another
subcontractor and not the Respondent. (Tr. 24.)
When he did not hear anything from Jans, Cervone sent an e-mail to him on March 11,
2009 requesting a response to the Union's proposal and a proposed date to discuss the
counter−proposal. Jans responded that he had e-mailed a counterproposal on March 9, 2009
and asked whether Cervone had received it. When Cervone replied that he had not received
the e-mail, Jans faxed his March 9 counterproposal to Cervone (GC Exh. 4).
The Respondent’s March 9 counterproposal included a provision for dues checkoff. It
also included the following wage proposal:
Effective April 1, 2009 and on every April 1 thereafter during the life of this
agreement, all bargaining unit employees shall receive a cost of living adjustment
(COLA) to all pay levels. The amount of the cost of living increase shall be
determined on the basis of the percentage change in the average of the
Consumer Price Index-All Urban Consumers-Chicago, Gary, Kenosha area, from
April 1, 2007 to March 31, 2008 and April 1, 2008 to March 31, 2009 with a
similar calculation every year thereafter during the life of this agreement.
A decline in the index will not result in the reduction of base wage rates
The Respondent’s counterproposal also offered five sick/personal days and a 2−year
agreement from the date of execution. Finally, the Respondent’s proposal sought to have the

5 Cervone testified that this was the first time that the Union had willing to withdraw its
proposal regarding a union−security clause.
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Union "withdraw all proceedings now pending before the NLRB”. (GC Exh. 5)6
On March 13, 2009, Cervone responded to Jans’ counterproposal with the following e-
mail:
The Union is considering your counter offer and needs some clarification.
First, we understand your proposal on wages to mean that the increase effective
April 1, 2009 will be based on the CPI for the period of April 2007 to April 2008
and the increase for the increase on April 1, 2010, will be based on the CPI for
the period of April 2008 to April 2009. Please confirm.
Second, is our acceptance of your contract proposals contingent upon our
agreement to withdraw the NLRB charges?
Depending on your answers, we believe we are very close to resolving the
matter. Please respond as soon as possible. (GC Exh. 6.)
On March 17, 2009 Jans sent the following letter by fax and e-mail to Cervone:
On March 9, 2000 I sent you a fax that included proposals for checkoff, wages,
sick days and a two-year term, all predicated and contingent upon withdrawal of
the pending NLRB proceeding, not just the charges. After receiving your inquiry
of last Friday, I am now led to believe that action is probably out of your control
and that my significant proposals were based on the hope for something I now
believe cannot occur.
Therefore, because I was in error about an important reason for making that
proposal, I must now withdraw my March 9 proposal in its entirety and instead
propose only the Article 30 COLA wage increase. Further, I do accept your
review of the meaning of date COLA proposal and ask you to give me some
language that will be clearer on the years that apply, if you agree.
I again propose a two-year agreement from the date of execution, although I
remain flexible on that matter.
Finally, if the withdrawal of the NLRB proceeding is within your power and can be
resolved in a short time, please let me know. I am certainly willing to explore that
matter and any others that may come up. (GC Exhs. 7 and 8.)
At the hearing Jans explained the reasons behind his March 9 proposal and its later
withdrawal. Jans testified that the parties had been bargaining for years and that his proposal
was an effort to obtain "labor peace." (Tr. 65−66). Jans testified that he was surprised that the
Union had dropped its demand for union security in its February 23 proposal since the Union
had always insisted on the inclusion of such a clause in a contract. He concluded that since he
had been successful in obtaining that concession through hard bargaining he intended to "get
as good a contract as I can get." (Tr. 67). Accordingly, Jans concluded that he would propose
that the Union withdraw the then pending adjudicated cases and accept the Respondent’s wage

6 Cervone credibly testified that the only pending charges at that time were those that were
involved in the administrative law judge’s decision which had issued on February 12, 2009.
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proposal in order to reach a contract (Tr. 66-67). In explaining the basis for his proposal, Jans
testified that in prior bargaining sessions Cervone had indicated that the Union could withdraw
charges it had filed.7 Jans explained at the hearing that his March 9 wage proposal based upon
the CPI would be approximately a $.22 an hour increase.
Jans testified that when he received Cervone's March 13 e-mail (GC Exh. 6) he
consulted his attorney and was informed that he could not package the withdrawal of the
pending NLRB case with the other proposals contained in his March 9 proposal. Jans explained
that he withdrew the offer because if he was going to give proposals that were acceptable to the
Union, it would have to give him something in return. When he found out that he could not tie
the Union's withdrawal of the pending case to his substantive proposals he decided to withdraw
his March 9 proposal and make another proposal. (Tr. 68−69.) Jans denied withdrawing the
proposal in retaliation for the various charges that the Union had filed against the Respondent.
After the Respondent’s withdrawal of its March 9 proposal, the parties met on March 25,
2009, in Cervone's office. Present for the Union were Cervone, Matthews, and a bargaining unit
employee. Jans was present for the Respondent. The meeting began by Cervone telling Jans
that the Union needed clarification regarding the Respondent’s position. Cervone asked why
Jans had withdrawn from the tentative agreement on dues checkoff and sick/personal days.
Jans responded that he had explained it in his letter, since the withdrawal of the NLRB case
was not in the Union's control, he was withdrawing his offer. Cervone stated that the
Respondent did not want to give the Union dues checkoff and the number of sick/personal days
it was seeking because the Union could not withdraw the pending NLRB case and Jans
responded affirmatively. Cervone asked Jans if that was his final position. Jans responded that
if somehow the Union could control the outcome of the NLRB case he would be willing to
explore it further. When Cervone asked if he Jans was saying that there was no further reason
to bargain, Jans replied that he would continue to talk but he did not know what there was to
talk about. (Tr. 35−37.)
Cervone stated that Respondent’s position was unfortunate because the Union was
prepared to accept what Jans had offered with the exclusion of the withdrawal of the NLRB
case. Cervone asked again if Jans was saying that he could not agree to anything that he
previously agreed to because the Union could not withdraw the NLRB case. Jans responded by
saying yes.
After a caucus the union representatives returned and Cervone informed Jans that the
Union was formally accepting his March 9, 2009, offer without the condition that it withdraw the
pending NLRB case. Jans acknowledged Cervone’s statement but did not respond further.
The parties then discussed the Respondent’s wage proposal and Jans further explained
how the cost-of-living increase proposal would work. Near the end of the meeting Cervone
asked again about the Union’s February 23 proposal and Jans responded that since the Union
could not do anything with the NLRB, he could not go back to his March 9 proposal. Cervone
responded by saying that was extremely unfortunate because the Union had made a major
concession by dropping its demand for union security and the parties could have reached an

7 Cervone testified on cross−examination that during the long course of bargaining between
the parties he had filed approximately four or five unfair labor practice charges. (Tr. 43−44) He
admitted that during the course of bargaining he had indicated that he could withdraw pending
charges in exchange for the Respondent accepting the Union's proposal regarding union
security and dues checkoff. (Tr. 44)
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agreement. (Tr. 39−40.)
On June 16, 2009, Jans and Cervone and Matthews had another meeting. Cervone
asked if there had been any change in the Respondent’s position given that the charge in the
instant case had been filed. Jans replied that there no change in the Respondent’s position.
When Cervone asked if the Respondent was going to reinstate its March 9 counterproposal,
Jans replied that it was not. (Tr. 40−41.)
Jans’ notes of this meeting corroborate that Cervone again requested that the
Respondent reinstate its March 9 proposal but that Jans refused to do so. Jans’ notes also
indicate that Cervone then asked what was there to talk about. Jans replied that he did not
know but that he was willing to talk. Cervone responded by saying there was nothing to talk
about until the Respondent reinstated its offer. (R. Exh. 2)8 The parties have had no further
meetings since June 16, 2009.
III. DISCUSSION AND ANALYSIS
The complaint in this case alleges that the Respondent since March 9, 2009, insisted, as
a condition of reaching an agreement, that the Union withdraw the charges in Cases
13−CA−44649 and 13−CA−44861, a non−mandatory subject of bargaining. The complaint
further alleges that on or about March 17, 2009 the Respondent rescinded its March 9, 2009
proposal because the Union would not withdraw the above noted unfair labor practice charges.
By such conduct, the complaint alleges that the Respondent has violated Section 8 (a) (5) and
(1) of the Act.
It is a settled proposition that an employer violates Section 8 (a) (5) and (1) of the Act
when it conditions a collective−bargaining agreement on the acceptance of a nonmandatory
subject of bargaining. NLRB v. Borg Warner Corp., 356 U. S. 342 (1958). In Borg Warner the
Court held that parties may make proposals that are outside of mandatory bargaining subjects
but to condition an agreement on a nonmandatory issue is, in substance, a refusal to bargain
about the mandatory subjects of bargaining. Id. at 349. The Board has held that the withdrawal
of unfair labor practice proceedings is a nonmandatory subject of bargaining. Hilton’s
Environmental, Inc., 320 NLRB 437 (1995); Laredo Packing Co., 254 NLRB 1, 18−19 (1981)
and cases cited therein.
In the instant case it is clear that the Respondent’s March 9, 2009 proposal included the
nonmandatory subject of the Union’s withdrawal of the prior unfair labor practice proceeding. As
Jans explained his proposal, he was attempting to obtain the most favorable contract he could.
He acknowledged that the Union's proposal, abandoning its long-held attempt to obtain a union
security−clause, was a surprising change in conditions. To that end, he fashioned the
Respondent’s March 9 proposal in a manner that, if accepted, would result in a collective-
bargaining agreement and the withdrawal of the prior case. The end result would give the
Union what it wanted, a contract and also obtain something of great value to him, the withdrawal
of the prior case.
When Jans received Cervone's March 13 e-mail, Jans was aware that the Union was of
the view that the parties were close to resolving the negotiations but that it had a question
regarding the manner in which the Respondent’s wage proposal would work and whether the

8 There is nothing in Cervone’s testimony to refute this statement attributed to him and
therefore I accept it as true.
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proposal was contingent upon the withdrawal of the prior unfair labor practice case. Rather than
responding to the Union's question, however, Jans withdrew part of his March 9 proposal but
maintained his wage proposal and his proposal that the term of the agreement be for 2 years.
In effect, this amounted to withdrawal of the portion of the March 9 proposal regarding dues-
checkoff and the offer of five sick/personal days. Jans’ letter indicated that the basis for
withdrawing his proposal was his understanding that the withdrawal of the prior charges was
out of the Union's control and that "my significant proposals were based on the hope for
something I now believe cannot occur." (GC Exhs. 7 and 8.) Importantly, however, Jans' letter
did not abandon the issue of the withdrawal of the charge. At the conclusion of his letter Jans
stated “if the withdrawal of the NLRB proceeding is within your power and can be resolved in a
short time, please let me know I am certainly willing to explore that matter and any others that
may come up." Thus, even in the letter withdrawing portions of his March 9 proposal Jans was
still indicating that the withdrawal of the prior NLRB proceeding was something he desired to
obtain.
At the critical March 25, 2009 meeting between the parties, Jans indicated, in substance,
that because of his understanding that the withdrawal of the prior unfair labor practice case was
not within the Union's control he would not revert to the provisions of his March 9 proposal
regarding dues checkoff and five sick/ personal days. When Cervone asked if that was his final
position, Jans responded it was, but he added that if the Union could control the outcome of the
NLRB case he would be willing to explore it further. At that meeting, as noted above, the Union
formally accepted the terms of the Respondent's March 9 proposal excluding the provision
regarding the withdrawal of the prior unfair labor practice proceeding. At the end of that meeting
when Cervone again asked to discuss the proposal, Jans reiterated that "you can't do anything
with the NLRB, so I can't go back.” (Tr. 39.) Finally, on June 16, 2009 Jans adhered to his
position that he would not reinstate the dues checkoff provisions in the sick/ personal days of his
March 9 proposal.
I find that the Respondent unlawfully conditioned agreement to a contract on the non-
mandatory subject of withdrawal of the prior NLRB case. As noted above, Jans' March 17
proposal, rather than retracting his insistence on the withdrawal of the prior proceeding as a
condition of reaching an agreement, in fact continued to assert that if the NLRB proceeding
could be withdrawn, he wished to pursue it. On March 25 Jans adhered to the position that he
would consider returning to his March 9 proposal only if the Union could withdraw the prior
proceeding. He maintained his position on June 16 at the last bargaining session. It appears
clear that the Respondent continued to insist on the withdrawal of the prior proceeding as the
only basis for returning to its proposal regarding dues checkoff and sick/personal days. Thus,
from March 25 to the cessation of bargaining on June 16, the Union indicated it would not
consider the withdrawal of the prior proceeding as a basis for resolution of the contract
negotiations. 9 In concluding that Respondent insisted to impasse on a resolution of the prior
proceeding as a condition of an agreement by June 16, I have considered the principles
regarding the existence of an impasse expressed in the Board's decisions in AFC Industries,
LLC, 347 NLRB 1040 (206) and Taft Broadcasting Co., 163 NLRB 475 (1967). Accordingly, I
find that the Respondent’s conduct in insisting to the point of impasse on conditioning
bargaining on remaining substantive terms of an agreement with the Union’s withdrawal of its
prior unfair labor practice proceeding violates Section 8 (a) (5) and (1) of the Act.

9 Although Cervone had previously discussed withdrawing charges earlier in negotiations
and was willing to initially explore the Respondent’s package proposal of March 9, the evidence
shows that from March 25 to the suspension of bargaining, the Union indicated it would not
withdraw the prior proceeding as part of an overall settlement.
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In its brief, Respondent correctly notes that the mere inclusion of a nonmandatory
subject of bargaining as part of a proposal is permissible as long as a party does not insist upon
its acceptance to the point of impasse. Pleasantview Nursing Home, 335 NLRB 961, 964
(2001). I do not agree, however, with Respondent's contention that it did not insist to the point of
impasse on the nonmandatory subject of the withdrawal of the prior Board proceeding. As set
forth above, the Respondent did not rescind its March 9 proposal in its entirety on March 17.
Rather, it withdrew its proposal on checkoff and sick/personal days but continued to assert that
withdrawal of the prior proceeding was something it sought to obtain and maintained that
position throughout the bargaining that occurred herein. By June 16 the record establishes that
the Respondent had nothing left to offer beyond that which had already been rejected and the
Union had no further proposals to offer at that time. Thus, by that date the parties had reached
a stalemate and therefore an impasse was established on the principles expressed in AFC
Industries and Taft Broadcasting Co., supra.
The complaint also alleges that the Respondent violated Section 8 (a) (5) and (1) of the
Act by rescinding its March 9 proposal because the Union would not withdraw the prior NLRB
case.10
It is well established that withdrawal of proposal previously advanced, or even tentatively
agreed on, is not per se a violation of the act. Transit Service Corp., 312 NLRB 477 43 (1993)
and cases cited therein. The Board has also held, however, that the withdrawal of a proposal
will be found to be violative of Section 8 (a) (5) and (1) of the Act if the employer lacks good
cause for the withdrawal. The Board has found a lack of good cause where the withdrawal of a
proposal was designed to avoid reaching an imminent agreement or was done in retaliation for
the exercise of protected rights under the Act. Transit Service Corp., supra ;Northwest Pipe &
Casing Co., 300 NLRB 726 734 (1990); Mead Corp., 256 NLRB 686 (1981); and Markel Mfg.,
239 NLRB 1353 (1979).
Relying principally on the cases noted above, Counsel for the General Counsel contends
that the Respondent’s withdrawal of its March 9 proposal lacked good cause as it was designed
to frustrate bargaining and to penalize the Union for not withdrawing the prior Board proceeding.
I find the cases relied on by Counsel for the General Counsel are distinguishable from the
instant case. Accordingly, for the reasons expressed below, I find that the Respondent’s partial
withdrawal of its March 9 proposal does not violate Section 8 (a) (5) and (1) of the Act.
In Markel, the parties executed an initial contract containing a dues−checkoff clause.
During negotiations for a successor agreement, the employer indicated it would not agree to
continuation of that provision because the union was filing too many charges alleging
discrimination against union members. The employer's asserted justification was that the
absence of a dues checkoff clause would preclude it from knowing which employees were
members, thus shielding the employer from claims of discrimination. The Board concluded that
the refusal to agree to the continuation of the dues−checkoff clause for the stated reasons
clearly indicated an intention to withdraw an existing term and condition of employment because
employees had exercised Section 7 rights. The Board found such conduct to impede and
frustrate bargaining for no legitimate purpose and thus found that the employer violated Section
8 (a) (5) and (1) of the Act.11

10 The complaint is narrowly drawn in this case and does not allege that the Respondent
engaged in an overall pattern of bad−faith bargaining.
11 In American Thread Co., 274 NLRB 1112 (1985) the Board found that an employer's
announcement, during negotiations for a successor agreement, that it would not agree to
Continued
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In Mead Corp., 256 NLRB 686 (1981) the Board found the employer's withdrawal of its
proposal for increases in wage rates for maintenance classifications at a time when it knew that
acceptance of its proposal was imminent violated Section 8 (a) (5) and (1) of the Act. The
Board's finding in this respect, however, was in the context of an overall pattern of conduct
reflecting a lack of intention to reach an agreement.
In Northwest Pipe & Casing, supra, the parties had reached a tentative agreement on
the terms of a collective-bargaining agreement including a "union shop" provision. Before the
union conducted a ratification vote, the employer withdrew its "union shop" proposal and
substituted an "open shop" provision. The Board found that the withdrawal of the "union shop"
clause was done at a time when the employer was aware of the fact that the acceptance of the
entire agreement, including that clause, appeared to be imminent. The Board concluded that,
under the circumstances, the withdrawal was made to prevent the formation of a binding
agreement and thus manifested bad faith. The Board also found that the employer's withdrawal
of its proposal was motivated by the union’s filing an unfair labor practice charge after the initial
tentative agreement was reached. Accordingly, the Board found that the employer's conduct
violated Section 8 (a) (5) and (1) of the Act.
In Transit Service, supra, the parties had implicitly agreed to a 3−year contract.
Thereafter, the employer withdrew its proposed agreement and substituted a 4−year agreement
with no raise in wages in the final year. The Board found that the employer withdrew the
tentatively agreed on proposal and order to avoid the union's execution of the agreement and
thus permit the processing of a decertification petition that had been filed. Under these
circumstances, the Board found that the employer had not established good cause for the
withdrawal of the tentatively agreed to proposal and found a violation of Section 8 (a) (5) and (1)
of the Act.
In the instant case, as noted above, the Respondent’s March 9 proposal included both
mandatory and nonmandatory subjects of bargaining. In response to this package proposal,
Cervone's March 13 e-mail indicated that the Union was considering the Respondent’s March 9
proposal but needed clarification. Cervone's e-mail indicated that the Union wanted to know
how the wage proposal based on the CPI would work. Cervone's e-mail also asked if the
acceptance of the contract proposal was contingent upon the Union's withdrawal in the prior
proceeding. Cervone closed his e-mail by indicating "depending on your answer, we believe we
are very close to resolving this matter." (GC Exh. 6.)
Jans testified at the hearing that after receiving Cervone's e-mail, he consulted with his
attorney and was informed that he could not “package" the withdrawal of the pending NLRB
_________________________
continuation of a dues-deduction clause because the union was filing too many charges did not
violate Section 8 (a) (5) and (1) of the Act. The Board found that the General Counsel had not
established that the employer made its proposal to frustrate negotiations and therefore its
insistence on deletion of the clause did not violate the Act. In so finding, the Board noted that
Markel was wrongly decided on the facts presented there. In American Thread the Board noted
that in Markel the General Counsel did not argue that the employer took its position to frustrate
bargaining. In American Thread the Board found no basis for the factual determination in
Markel that the employer in that case conditioned agreement on the continuation of the dues-
checkoff provision on a guarantee that protected activities would cease when there was no
findings to support such an inference. I note, however, that in a later case, Northwest Pipe &
Casing, the Board cited Markel with approval.
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case with the other proposals in his March 9 offer.12 Jans withdrew the proposal at that point
because, in his view, the overall settlement he hoped to obtain by his March 9 proposal
appeared unlikely. Accordingly, on March 17 he, in effect, withdrew that portion of the March 9
proposal involving dues-checkoff and the offer of 5 sick/personal days. This action occurred a
mere 9 days after his original proposal was made. The only tentative agreement l that was
withdrawn was the Respondent's acceptance of the union's dues-checkoff provision. There had
been no tentative agreements reached on the remaining critical issues of wages, the duration of
the contract and the number of sick/personal days, prior to the withdrawal of his proposal. Thus,
at the time of the withdrawal of his March 9 proposal, it cannot be said that agreement on an
entire collective bargaining agreement was imminent. Rather, the Union was continuing to ask
questions about the March 9 proposal before responding to it. The evidence clearly establishes
that the Union did not accept the portions of the March 9 proposal that constituted mandatory
subjects of bargaining until March 25, after they had been withdrawn. Since the evidence does
not establish that an overall agreement was imminent on March 17, I find that the Respondent's
withdrawal of its March 9 proposal was not done to impede bargaining and avoid reaching an
agreement. Rather, Jans’ withdrawal of portions of his March 9 proposal was an attempt to
readjust Respondent's bargaining position after receiving advice from his Counsel regarding the
relationship between mandatory and nonmandatory subjects of bargaining.
In addition, I conclude that the Respondent did not withdraw portions of its March 9 offer
in retaliation for the Union's initiation of the prior NLRB proceeding. This proceeding obviously
predated the resumption of bargaining on February 23 and no new charges had been filed as of
March 17. In addition, there is no evidence of expressions of animus by Jans or any other
Respondent representative regarding the exercise of Section 7 rights. Quite simply, the record
contains insufficient evidence to establish that the partial withdrawal of the March 9 proposal
was motivated by the existence of the prior Board proceeding. While admittedly Jans wanted to
resolve the prior case, as noted above, I find the withdrawal of portions of his March 9 proposal
was an attempted readjustment of Respondent's bargaining position after receiving advice
regarding the relationship of that case to the present bargaining.
In summary, I find the evidence does not support a conclusion that the Union's
acceptance of the March 9 proposal was imminent and that the withdrawal of that proposal was
done in bad faith in order to avoid reaching an agreement. I also find that the withdrawal of that
proposal was not done in retaliation for the exercise of Section 7 rights that were vindicated in
the prior proceeding. Accordingly, I find the cases relied on by the General Counsel discussed
above to be distinguishable.
In addition, the proposals that were withdrawn in all the cases relied on by Counsel for
the General Counsel were composed entirely of mandatory subjects of bargaining. None of the
proposals at issue in those cases were comprised of both mandatory and nonmandatory
subjects of bargaining, as was the Respondent’s March 9 proposal herein. Since Respondent’s
March 9 proposal contained both mandatory and nonmandatory subject of bargaining, I find that
the Board's decisions in Good GMC Inc., 267 NLRB 583 (1983) and Nordstrom, Inc., 229 NLRB
601 (1977) support the conclusion I reach in this case. In Good GMC the Board stated the
following:
The Board in Nordstrom noted that it was clear that a party could not lawfully
insist upon the inclusion in a collective-bargaining agreement of proposals that
were nonmandatory nature. Nevertheless, the Board noted that nonmandatory

12 Jan's testimony on this point is uncontroverted and plausible and therefore I credit it.
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subjects of bargaining could, as a function of cost, bear upon the party’s
mandatory subjects of bargaining. Thus, to say that the proponent of the
nonmandatory proposal could not insist upon the inclusion of such a proposal
meant just that, and no more. Once the nonmandatory proposal was removed
from the bargaining table, there was nothing to prohibit the proponent of that
nonmandatory subject from altering its proposals concerning mandatory subjects
in light of the removal of the nonmandatory subject. Id at 584.
The Board further noted in Good GMC that when a collective-bargaining proposal
contains both mandatory and nonmandatory subjects of bargaining a party is not entitled to pick
and choose between those contract proposals which suit its need and demand execution of an
agreement limited to those proposals.
In the instant case I find that Jans’ withdrawal of portions of his March 9 proposal
was an attempt to alter that proposal in a manner that readjusted it in conformance with his
understanding of the advice he had obtained regarding the relationship between mandatory and
nonmandatory subjects of bargaining. It was not done, in my view, in bad faith in order to avoid
reaching an agreement or in retaliation for the exercise of rights protected under the Act.
Accordingly, I find that the Respondent did not violate Section 8 (a) (5) and (1) of the Act by
withdrawing a portion of its March 9 proposal and therefore I shall dismiss that part of the
complaint.
CONCLUSIONS OF LAW
1. By insisting as a condition of reaching a collective−bargaining agreement that the
Union agree to withdraw the prior Board proceeding in Cases 13−CA−44649 and
13−CA−44861, a nonmandatory subject of bargaining, the Respondent has engaged in unfair
labor practices affecting commerce within the meaning of Section 8 (a) (5) and (1) and Section
2(6) and (7) of the Act.
2. The Respondent has not otherwise violated the Act.
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
I shall order that the Respondent, on request, bargain collectively with the Union as the
exclusive collective-bargaining representative of the employees in the unit with regard to rates
of pay, wages, hours of employment and other terms and conditions of employment and, if an
agreement is reached, embody that agreement in a written, signed agreement
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended13

13 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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ORDER
The Respondent, Cook Dupage Transportation Co., Chicago, Illinois, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with the Union as the exclusive bargaining representative of the
employees in the following appropriate unit:
All full-time and regular part-time drivers employed by the Respondent at
its facility currently located at 1200 W. Fulton, Chicago Illinois, but excluding all
clerical employees, professional employees, salesmen, guards and supervisors
as defined in the Act.
(b) Conditioning bargaining proposals on the Union withdrawing prior unfair labor
practice proceedings.
(c) In any like or related manner, interfering with, restraining or coercing employees in
the exercise of rights guaranteed them by the Act.
2. Take the following affirmative action necessary for effectuating the policies of the Act.
(a) On request, bargain collectively with the Union as the exclusive collective-bargaining
representative of the employees in the above-described unit with respect to rates of pay, wages,
and other terms and conditions of employment, and, if an understanding is reached, embody the
understanding in a signed agreement.
(b) Within 14 days after service by the Region, post at its facility in Chicago, Illinois
copies of the attached notice marked “Appendix.”14 Copies of the notice, on forms provided by
the Regional Director for Region 13 after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the Respondent at any time since
March 9, 2009.
(c) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.

It Is Also Ordered that the complaint is dismissed insofar as it alleges violations of
the Act not specifically found herein.

14 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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Dated, Washington, D.C., November 5, 2009.
____________________
Mark Carissimi
Administrative Law Judge
JD-51-09
Chicago, IL
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT refuse to bargain in good faith with Amalgamated Transit Union Local 1028 (the
Union) as the exclusive representative of the employees in the following unit:
All full-time and regular part-time drivers employed by Cook Dupage
Transportation Company at our facility currently located at 1200 W. Fulton,
Chicago, Illinois, but excluding all clerical employees, professional employees,
salesman, guards and supervisors as defined in the Act
WE WILL NOT condition our bargaining proposals on the Union withdrawing prior unfair labor
practice proceedings.
WE WILL NOT in any like or related manner interfere with, restrain or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act
WE WILL, on request, bargain collectively with the Union as the exclusive collective−bargaining
representative of the employees in the unit with respect to rates of pay, wages and other terms
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Chicago, IL
and conditions of employment, and, if an understanding is reached, embody the understanding
in a signed agreement.
COOK DUPAGE TRANSPORTATION COMPANY
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
200 West Adams Street, Suite 800
Chicago, Illinois 60606-5208
Hours: 8:30 a.m. to 5 p.m.
312-353-7570.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 312-353-7170.